An Indian tribe whose
gambling compact included a limited waiver of sovereign immunity did not
thereby consent to being sued in state court, nor can an action be maintained
in state court based solely on the alleged unfairness of its tribal
proceedings, the Fourth District Court of Appeal has ruled.

In a July 18 decision,
certified Friday for publication, Div. One affirmed San Diego Superior Court
Judge Patricia Y. Cowett’s order quashing service of Nellie and Keith
Lawrence’s complaint on the operators of the Barona Valley Ranch Resort and
Casino.

The Barona Band of
Mission Indians operates the casino, pursuant to the Indian Gaming Regulatory
Act of 1988 and a compact with the state of California. Under the compact, the
tribe agreed, among other things, to establish a tort claims procedure for
patrons of the casino and resort, to maintain at least $5 million in liability
insurance to cover claims, and to waive sovereign immunity to the extent of its
insurance and within the limitations of an ordinance to be adopted by the
tribe.

Under that ordinance,
patrons may bring claims for injuries resulting from the negligence of the
tribe, “its enterprises, agencies, and officers,” or its employees or agents
acting within the scope of their employment or agency. The ordinance specifies
that claims are to be submitted to the tribe’s insurer, and that appeals from
rejected claims may be taken to the Barona Tribal Council, sitting as a tribal
court.

In 2004, after Nellie
Lawrence was injured at the casino as a result of being run into and knocked
down, the Lawrences made a $1 million claim, alleging that the person who
knocked her down was a casino employee. The insurance carrier rejected the
claim, and the tribal council ruled that the negligent party was a fellow
patron, not a casino employee, and rejected the claim as well.

The Lawrences then sued
in San Diego Superior Court. The tribe demurred, claiming sovereign immunity,
to which the Lawrences responded that the tribe waived its immunity by entering
into the compact and that the claims process was “grossly unfair” to claimants.

But in an opinion by
Justice James McIntyre, the appellate court agreed with Barona and the trial
judge that neither the compact nor the right to due process provided the
Lawrences with enough ammunition to pierce the tribe’s immunity.

The justice explained
that a waiver of sovereign immunity is not, in and of itself, a consent to be
sued in state court. He distinguished last year’s ruling allowing the Fair
Political Practices Commission to force tribes to comply with campaign finance
reporting laws.

That decision, McIntyre
noted, was based on federal constitutional provisions that the state Supreme
Court said allowed the state to enforce laws governing its electoral processes.
The ruling cannot be stretched to cover a private action related to a
commercial activity, the justice concluded.

As to the alleged
unfairness of the tribal proceedings, McIntyre said that issue could not be
litigated in state court for several reasons, including the plaintiffs’ failure
to raise the issue or plead the relevant facts in their complaint; the lack of
any provision in the compact designating the state courts as the forum for such
a challenge; and the requirement that any waiver of sovereign immunity be
narrowly construed.

“That the Lawrences find
Barona’s choices unacceptable does not render Barona subject to suit in state
court,” the justice summarized, although he suggested that the language of the
compact might give them a remedy in federal court.